Taint of foreign nationality

By Cleofato A Coutinho
03 January 2013 20:14 IST

When comes to elections, electoral laws and formation of governments, this tiny state has always been on the forefront. After the current assembly was constituted a petition came to be filed before the Hon’ble High Court of Bombay at Goa challenging the election of ‘Caitu’ as the MLA from Benaulim on the allegation of him being a Portuguese citizen. Now media reports that another MLA Glen Ticklo from Aldona is a Portuguese National.

The petition against Caitu is being heard and since election petitions are in the nature of a normal suit, it has to pass through the normal fire of the civil litigation. In fact the High Court is yet to decide whether it can adjudicate on the matter of citizenship or whether the matter requires to be decided solely by the Central Government in terms of section 9 of the Citizenship Act 1955

When an MLA is alleged to have acquired citizenship of another country there can be two modes of adjudication one on the question of disqualification and the other on the question of acquiring citizenship of another country. On the question of acquiring citizenship of another country the matter is within the clear domain of the Central Government under the Citizenship Act and Citizenship Rules 2009. Sec. 9(2) of (The Citizenship Act 1955) reads as under “… If any question arises as to whether, when or how any {citizen of India} has acquired the citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence, as may be prescribed in this behalf”.

Rule 40 gives the power to the Central Government to determine the issue and in terms of clauses 1 and 2 of schedule III to the Citizenship Rules 2009, the burden of proving that he has not acquired a citizenship of another country is on the person who is so accused of and in deciding the matter the Central Government may make such reference as it thinks fit, to its embassy in that country or to the government of that country and act on such a report. Thus the Central Government is the final arbiter on the matters of acquisition of foreign citizenship.

In case no election petition is filed the Governor of the state could be moved with a petition under Article 192 of the Constitution and the Governor is obliged to take the opinion of the Election Commission of India and while giving the final decision on the matter of disqualification, the governor would have to go by the opinion of the Election Commission but due to Sec. 9(2) of the Citizenship Act 1955, the Election Commission would have to seek opinion of the Central Government. Thus when an MLA attains disqualification due to him having acquired a foreign nationality it is in a way the decision of the Central Government. In Baghawati Prasad Dixit Ghorewala v/s Rajiv Gandhi ruled that Central government alone is appointed as the authority to decide the question of voluntary acquisition of citizenship of a foreign country. “…No other court or authority has the power to decide the question as to whether, when or how an Indian citizen has acquired the citizenship of another country…”.

How long will the governor take to refer the matter to the Election Commission? How long will the Election Commission take to take opinion of the Central government and how long will the Central Government take to decide? There are no answers to these questions. Slow legal processes is the rule in this country. It is that slow process that every wrong doer takes advantage of.

In 1996 Subramaniam Swamy submitted such a petition to the Governor to the effect that the chief minister has become subject to disqualification as a member state legislature of Tamil Nadu. The Governor kept the representation pending for nearly four months without taking action thereon. But before the Supreme Court decided upon a petition filed by Subramaniam Swamy the Governor referred the matter the Election Commission for inquiry and report!

The country currently is grappling with speedy justice (on the issues of crime against women). Equally important are quick remedies on issues like the one raised in Goa on nationality of MLAs. Allegations of the nature against ‘Caitu’ and Glen Ticklo must be adjudicated in a speedy manner so that the taint of foreign citizenship cannot be permitted to tar the proceedings in the house as attaining foreign citizenship is a basic disqualification for any person to be an electoral roll or to be an MLA.

A very interesting case came up before the Supreme Court in 1999 (K. Venkatachallam v/s A. Swamickan). The allegation was that Venkatachallam impersonated himself for another person of the same name in the electoral roll and thus by such act came to be elected to the Tamil Nadu Assembly. No election petition was filed and it appears no petition was filed to the Governor also but the division bench of the Madras High Court in its writ jurisdiction declared the election of Venkatachallam illegal. Brushing aside all technical objections to the maintainability of the writ petition opined “… consider the case where the person elected is not a citizen of India. Would the court allow a foreign citizen to sit and vote in the legislative assembly and not exercise jurisdiction under Article 226 of the constitution”. The court required the secretary of the Tamil Nadu legislative assembly to intimate the state government as to how many days the appellant a as the member of the legislative assembly for the state government to recover penalty at the rate of Rs. 500/- per day. When a person who has acquired foreign citizenship files an affidavit of his being an Indian citizen, it is a clear case of a fraud on the Constitution of India and a criminal act which cannot be condoned and deserve severe penalty. No person carrying a taint of foreign citizen can be permitted to sit in the house and legislate for a country whose citizenship he has voluntarily given up.

In most cases disqualification petitions are decided by the High Courts at a time when the term of the assembly is over or in some cases at the tag end of a five year term. We have seen over a long period how the speakers of the houses have sat over disqualification petitions and/or decided matters of under anti defection law in an absolute arbitrary manner with a fond hope of creating majority for a ruling party and by the time the final adjudication of the Supreme Court comes the term of the assembly gets over. It is not that only accused under criminal justice system enjoy the benefit of slow judicial process.

It is probably first time ever in the history of this country that there is allegation against MLAs having foreign nationality. Will this tiny state again come to the forefront in providing quick resolution over such disputes?

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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sir you mean to say the foreign nationality can be acquired only by registration of birth.goa is a small state with less population but der r other state were people migrate in foreign country and stay for life time and get an indefinate visa on an asain passport. so wht is an indifinate visa on an asain passpot. it is a visa wer a person can stay in this country forever. claim government schemes and benifits forever and can vote for the election. so my question is that can a person vote for the election in asain country as well as in foreign country on an indefinate visa .can a person claim government schemes and benifits in asain country as well in foreign country. today der r lot of punjabis gujratis keralities madrases with their family whole over world with indefinate visa on an asain passport. the election commision and the ministry of external affairs has to see into it. otherwise inform them you cannot take 2 nationality you have to give up one.they take the advantages and citizenship of both the country.and parrikar should no about this.infrom the central government